Gorlicki v Patrick Stevedores Holdings Pty Ltd & Ors
[2024] NSWPIC 50
•9 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gorlicki v Patrick Stevedores Holdings Pty Ltd & Ors [2024] NSWPIC 50 |
| APPLICANT: | David Gorlicki |
| RESPONDENT: | Linx Stevedoring (BSL) Pty Ltd |
| SECOND RESPONDENT: | Patrick Stevedores Holdings Pty Ltd |
| THIRD RESPONDENT: | Linx Cargo Care Pty Ltd |
| FOURTH RESPONDENT: | Sydney International Container Terminals Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 9 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and medical expenses for injury to the left shoulder, including the cost of surgery which the applicant has already undergone on the left shoulder; dispute as to whether there was a frank injury within section 4(a) or a disease injury pursuant to section 4 (b)(ii); reference to Australian Conveyor Engineering P/L v Mecha Engineering P/L and Rail Services v Dimovski and Anor; whether work provided to the worker was a ‘made up job’ in determining if the worker had no current work capacity; reference to Popal v Myer Holdings P/L; Held – the worker sustained a disease injury pursuant to section 4(b)(ii); the worker has had no current work capacity since weekly payments were terminated; the treatment of the left shoulder, including surgery performed on the left shoulder, is reasonably necessary as a result of the work injury. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained an injury to his left shoulder in the course of his employment with the third respondent, Linx Cargo Care Pty Ltd, by way of a disease injury pursuant to s 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 21 January 2022. 2. The applicant continues to suffer the effects of the injury sustained in the course of his employment with the third respondent. 3. The applicant has had no current work capacity since 21 November 2022. 4. The hemi-arthroplasty surgery which the applicant underwent to his left shoulder on 5. No order is made by way of contribution by the fourth respondent to the payment of compensation to the applicant as provided for by s 16 (2) of the Workers Compensation Act 1987 because there is an agreement between the third and fourth respondents in regard to this. The Commission orders: 1. The third respondent is to pay the applicant weekly payments of compensation as follows: (a) $2,341.80 per week from 21 November 2022 to 31 March 2023 pursuant to s 37 (1) of the 1987 Act; (b) $2,395.30 per week from 1 April 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act, and (c) $2,423.60 per week from 1 October 2023 to date and continuing pursuant to s 37 (1) of the 1987 Act. 2. The third respondent is to pay the costs of the applicant’s reasonably necessary medical expenses for treatment for the injury to the left shoulder, including the costs of the hemi-arthroplasty surgery which the applicant underwent on 21 February 2023 and ancillary costs to that surgery, pursuant to s 60 of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
The applicant in these proceedings, David Gorlicki, was employed as a stevedore with the following employers:
(a) Linx Stevedoring (BSL) Pty Ltd from April 2005 to 30 June 2008;
(b) Patrick Stevedores Holdings Pty Ltd from 1 July 2008 to 1 February 2015;
(c) Linx Cargo Care Pty Ltd (‘Linx Cargo Care’) from 2 February 2015 to
31 July 2015, and again from 7 September 2021 to 14 December 2022, and(d) Sydney International Container Terminals Pty Ltd, trading as Hutchinson Ports (‘Hutchinson Ports’) from 20 October 2016 to 6 September 2021.
The applicant claims that the duties which he undertook as a stevedore with all four employers were hard and arduous.
The applicant claims that he began to notice the onset of problems with his left shoulder from 2018 while employed with Hutchinson Ports.
The applicant claims that on or about 21 January 2022 he was working as a stevedore for Linx Cargo Care and had to vigorously flick some heavy metal chains to loop them around the sides of a billet when he noticed a sharp pain in his left shoulder.
The applicant continued to perform his normal duties as a stevedore for another month, but he was then placed on selected duties due to ongoing pain in the left shoulder.
Icare issued a dispute notice on behalf of Linx Cargo Care on 27 October 2022 wherein worker compensation liability was disputed on the grounds that the applicant did not have total or partial incapacity for work or the need for medical treatment as a result of a work injury which was sustained while employed with Linx Cargo Care. The notice stated that weekly payments of compensation would come to an end from 21 November 2022.
The applicant was stood down from selected duties by Linx Cargo Care on
21 November 2022 and his employment was terminated on 14 December 2022.Icare issued a further dispute notice on 3 April 2023 wherein the decision to dispute liability was maintained. The notice stated that the left shoulder aggravation injury had now resolved.
Icare issued a further dispute notice on 24 November 2023 wherein it conceded that the applicant had sustained an injury to his left shoulder on 21 January 2022, but that the applicant did not suffer any injury or aggravation to his left shoulder as a result of the nature and conditions of his employment with Linx Cargo Care.
Allianz issued a dispute notice on behalf of Hutchinson Ports on 12 July 2023 wherein it disputed that the applicant sustained any injury to the left shoulder while employed with their insured, and that any liability fell on the applicant’s last employer, being Linx Cargo Care.
The applicant underwent hemi-arthroplasty of the left shoulder on 21 February 2023, which was performed by Dr Popoff.
The applicant claims compensation as a result of a gradual process of injury to his left shoulder in the course of his employment with the four respondents in these proceedings.
The applicant claims weekly payments of compensation from 21 November 2022, along with the payment by the respondent of reasonably necessary medical expenses for the treatment of the injury to the left shoulder, including the costs of the surgery performed on
21 February 2023.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) the nature of the injury sustained by the applicant to his left shoulder in the course of his employment with all or any of the four respondents in these proceedings (ss 4 and 16 of the Workers Compensation Act 1987 (the 1987 Act));
(b) the extent of the applicant’s incapacity for work as a result of an injury sustained by the applicant in the course of his employment with all or any of the four respondents in these proceedings (ss 32A, 33, 36 and 37 of the 1987 Act), and
(c) whether all or any of the four respondents in these proceedings are liable for the reasonably necessary medical treatment required by the applicant for the injury to his left shoulder (s 60 of the 1987 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
This matter was listed for conciliation and arbitration on 13 December 2023. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Tanner appeared for the applicant, instructed by Mr Trainor. Mr Phillip Perry appeared for all four respondents, instructed by Mr Vrettos.
The hearing could not be completed on that day and the following timetable was set for filing written submissions:
(a) the applicant to file and serve written submissions by 8 January 2024;
(b) the respondents to file and serve written submissions by 25 January 2024, and
(c) the applicant to file and serve written submissions in reply by 2 February 2024.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and taken into account in making this determination:
(a) Application to Resolve a Dipuste (ARD) and attached documents;
(b) Reply and attached documents filed by Linx Cargo Care;
(c) Reply and attached documents filed by Hutchinson Ports;
(d) Application to Admit Late Documents filed by the applicant on
10 November 2023;(e) Reply filed by Patrick Stevedores Holdings Pty Ltd;
(f) Application to Admit Late Documents filed by the applicant on 1 December 2023;
(g) written submissions filed by the applicant on 10 January 2024, and
(h) written submissions filed by the respondent on 29 January 2024.
Oral evidence
There was no application to cross examine the applicant or for the applicant to adduce oral evidence.
FINDINGS AND REASONS
The nature of the injury sustained by the applicant to his left shoulder in the course of his employment with one or more of the respondents in these proceedings
The applicant’s evidence
The applicant has provided statements dated 7 June 2023, 15 August 2023,
9 November 2023 and 30 November 2023.The applicant states that he sustained an injury to his left shoulder in early 1996 when he was rollerblading. He states that he underwent surgery to his left shoulder on 8 August 1996, which was performed by Dr Goldberg. He states that he made a good recovery from that operation and return to work as a barman.
The applicant states that he worked for various stevedoring companies from 2005 to November 2022, except for a 12-month period from July 2015 to July 2016 when he was employed with Pacific National Rail as a forklift and crane operator.
The applicant describes undertaking heavy manual work with Linx Stevedoring (BSL) Pty Ltd and Patrick Stevedoring Holdings Pty Ltd, which included handling and cutting dunnage with the use of chainsaws, and the positioning of dunnage with the use of sledgehammers and crowbars, in the holds of ships. The applicant states that this placed strain upon his shoulders.
The applicant states that he did mostly “lashing” work with Hutchinson Ports from
October 2016 to September 2021, which involved either stripping off lashing bars prior to containers being unloaded or fixing lashing bars in place to secure containers before a ship left the port.The applicant states that he began to notice the onset of problems in his left shoulder from about 2018 when he was employed with Hutchinson Ports. He states that he saw Dr Kemp, who the applicant understands was a shoulder specialist, in November 2018. The applicant states that he continued to have pain and discomfort in his left shoulder from that time onwards.
The applicant states that he saw Dr Goldberg in September 2020 and was given some injections and was prescribed anti-inflammatory medication. He states that he saw his general practitioner, Dr Serfontein, on three occasions during 2021 for his shoulder symptoms and was prescribed Mobic.
The applicant states that in September 2021 he resigned from Hutchinson Ports and commenced employment with Linx Cargo Care as a stevedore. He states that he was doing similar work to what he had done with Patricks Stevedoring Holdings Pty Ltd between 2012 and 2015. He states that most of his work was in the holds of the ships and involved heavy use of both arms and shoulders for between 40 and 65 hours each week.
The applicant states that on 21 January 2022 he worked in the hold of a vessel for almost an entire 12 hour shift. He states that he had to lift and move dunnage and throw dunnage into skip bins, and also had to shackle up the billet cargo to crane wires and hooks. The applicant states that during the shift he had to flick two heavy chains vigorously with both hands to loop them around the sides of a billet. He states that he noticed a sharp pain in his left shoulder when he did this. He states that this was a task which he had frequently performed with Linx Cargo Care and when he was employed with the other respondents in these proceedings. He states that he continued working until the end of his shift but by then he was having pain in both shoulders, with the left shoulder being worse than the right shoulder.
The applicant states that a few days later he saw a general practitioner, Dr David, at Anna Bay. He states that he continued to do his normal duties for a couple of weeks, but it was hard work. He states that Dr David gave him a certificate for light duties for a month on
22 February 2022.The applicant states that he was provided with clerical duties by Linx Cargo Care and he received workers compensation payments when there were no suitable duties provided to him.
The applicant states that he received a letter from icare dated 27 October 2022 which declined further liability for his claim. He states that he remained working on selected duties with Linx Cargo Care until 21 November 2022 when he was informed that suitable duties could no longer be supplied to him because his claim had been declined. He states that his employment with Linx Cargo Care was terminated on 14 December 2022.
The applicant states that he saw Dr Goldberg on 1 March 2022 and saw him on a number of other occasions during 2022. The applicant states that Dr Goldberg recommended left shoulder joint replacement surgery, but that Dr Goldberg had retired from surgical practice and recommended Dr Popoff.
The applicant states that he underwent surgery to his left shoulder, which was performed by Dr Popoff, on 21 February 2023. He states that he has paid for all his surgical and medical costs to date.
The medical evidence
There is a report from Dr Kemp of Hunter Hand and Upper Limb Surgery dated
19 November 2018. Dr Kemp records that the applicant’s left shoulder “has always been a bit sore” since he underwent stabilisation surgery in 1997. He records that the applicant had a gradual increase in discomfort over the anterior aspect of the left shoulder some six weeks before his consultation when “cracking bottles tight to the lashing bars” as part of the applicant’s work duties.Dr Kemp writes that the applicant’s presentation would be consistent with glenohumeral arthrosis which presumably is post-traumatic following previous episodes of instability and subsequent stabilisation.
Dr Kemp provides a further report dated 22 January 2019 after the applicant undergoes a MR arthrogram and states that the study confirmed the rotator cuff to be intact but with reactive change in the subscapularis tendon consistent with the previous surgery.
There is a report from Dr Goldberg dated 7 September 2020 wherein it is recorded that the applicant developed symptoms in his left shoulder about three years ago and which the applicant relates to “lashing” at his work. Dr Goldberg opines that the applicant is developing osteoarthritis in his left shoulder, which is not uncommon following episodes of recurrent instability and stabilisation surgery.
Dr Goldberg recommends that the applicant avoid lifting activities and surfing, but that the applicant wishes to continue to work and to surf. He writes that if the applicant’s symptoms do not significantly improve and the applicant wishes to remain active, then he should consider pyrocarbon hemiarthroplasty rather than a total shoulder replacement.
The next report from Dr Goldberg which is in evidence is dated 1 March 2022. Dr Goldberg records that the applicant has done reasonably well with cortisone injections and anti-inflammatory medication, but at the end of January the applicant developed quite significant bilateral shoulder pain, with the left shoulder being far more symptomatic than the right, following an injury at work when the applicant was holding a large chain and abducted his arms. Dr Goldberg opines that the applicant has long-standing osteoarthritis of his left shoulder “but almost certainly tore part of the rotator cuff in the accident at work early this year”. Dr Goldberg was hopeful that the rotator cuff symptoms would settle over a few months. In the meantime, Dr Goldberg recommends light duties with no lifting above
2kg and no repetitive work.Dr Goldberg records improvement in the left shoulder over the next few months. However,
Dr Goldberg states in a report dated 25 October 2022 that the applicant still has ongoing symptoms referable to his arthritic glenohumeral joint. In a report one month later, and after the applicant undergoes another MR arthrogram, Dr Goldberg writes that the applicant has significant glenohumeral arthritis, but that the rotator cuff is of good quality for the applicant’s age. Dr Goldberg recommends that the applicant considers a pyrocarbon hemiarthroplasty for the left shoulder.Dr Goldberg has provided a report at the request of the applicant’s lawyers dated
23 November 2022. Dr Goldberg opines that liability for the arthritic change in the shoulder joint relates to the initial injury in 1996 and subsequent dislocations which have occurred. He considers that it is clear that the applicant has developed osteoarthritis over the years, but also notes that the applicant has been able to function as a stevedore and has been able to surf. Dr Goldberg concludes:“The work-related injury clearly aggravated a pre-existing condition, and as a result of that injury combined with the arthritis, the patient has been unable to return to his pre-injury duties and to perform the sporting activities that he desires. As a result of the work-related injury his quality-of-life has been compromised. However, the need for the ongoing management does relate to the arthritic change in his shoulder joint.”
Dr Popoff has provided a report to Dr Goldberg dated 7 December 2022. Dr Popoff records that the applicant had recurrent dislocations of the left shoulder from 1995 and underwent shoulder stabilisation in 1997 or 1998. He records that the applicant developed pain in the left shoulder in 2019, but that he was treated by Dr Goldberg with cortisone injections and physiotherapy which led to a complete resolution of his symptoms. Dr Popoff records that the applicant’s shoulder became pain free and the applicant was able to work until early 2022 when the left shoulder became painful after a prolonged period of heavy lifting in the bottom of the ship.
Dr Popoff opines:
“My opinion is that his osteoarthritis was pre-existing and he had a pretty high risk of developing it due to the history of recurrent instability, however he was treated non-operatively for his osteoarthritis and was totally asymptomatic and he was able to perform normal lifestyle activities such as work and surfing without any pain or difficulty. His shoulder only became painful when he changed roles at work and was subjected to a prolonged period of repetitive heavy lifting in confined quarters, and this caused his shoulder to decompensate and has remained symptomatic since. Because of this history it is clear that his role at work, which led to deterioration of his symptoms, was a major aggravating factor in his present condition, which even though it was pre-existing was totally asymptomatic until this time. The aggravation has continued and is likely to continue.”
Dr Popoff then opines that the applicant’s current symptomatology and aggravation of symptoms is directly related to his work activities, and that if the applicant had continued as an office worker then the shoulder would have remained asymptomatic for some time onto the future.
Dr Popoff also provides a report to the applicant’s lawyers dated 1 February 2023 which is in much the terms as his report to Dr Goldberg.
It is also apparent that the applicant attended Dr Harper, shoulder and elbow surgeon, for treatment of the left shoulder, and Dr Harper writes in a report dated 7 December 2022 that the applicant has had a three year history of left shoulder pain, stiffness and loss of function. Dr Harper considers that the applicant has “left shoulder instability related early onset glenohumeral joint osteoarthritis”.
Dr Isaacs, orthopaedic surgeon, has provided a report at the request of the applicant’s lawyers dated 14 February 2023.
Dr Isaacs records that the applicant attended Dr Kemp in October 2018 due to a gradual increase in left shoulder pain. He records that the applicant continued to have symptoms of pain in his left shoulder and was referred back to Dr Goldberg in September 2020. Dr Isaacs records that the applicant remained symptomatic.
Dr Isaacs then records details of the work which the applicant was doing for 12 hours on
21 January 2022. He records that the applicant noticed the onset of increasing pain in both shoulders when undertaking those duties.Dr Isaacs diagnoses traumatic degeneration of the left shoulder/aggravation of degeneration in the left shoulder. He opines:
“It is my opinion that Mr Gorlicki suffers from the aggravation of the disease and the nature and conditions of his work and the incident that occurred on 21 January 2022 being the main contributing factor to the aggravation.
Though he did develop traumatic degeneration of his left shoulder, as a result of the dislocation he had to the left shoulder in 1996, it was the aggravation and deterioration of the degeneration due to the type of work he was doing as a stevedore and the incident that occurred on 21 January 2022 has resulted in his current disability for which the hemiarthroplasty has become reasonably necessary.”
Dr Harrington, orthopaedic surgeon, has provided a report at the request of Linx Care Cargo dated 29 September 2022.
Dr Harrington records that the applicant dislocated his left shoulder in the 1990s and went on to recurrent instability, which required a stabilisation procedure by Dr Goldberg. He records that the applicant had discomfort in his left shoulder in 2019 and then the shoulder became a bit worse at the beginning of 2022 and that the pain was gradual. Dr Harrington records that the applicant’s left shoulder became even worse on 21 January 2022 when he was down a hole for 12 hours and slinging steel from a crane which had to be manoeuvred to certain areas.
Dr Harrington opines that the applicant has glenohumeral arthritis of the left shoulder which has been aggravated by the applicant’s employment, but that the aggravation was only temporary and has now ceased. Dr Harrington opines that the applicant’s pre-injury history dating back to the 1990s is the main and substantial contributing factor to his presentation of end-stage arthritis in the glenohumeral joint. He considers that the injury at work in
January 2022 would be considered a temporary aggravation to a pre-existing condition.
A summary of the submissions by the parties to the dispute
Mr Tanner for the applicant submits that the applicant suffered an injury to his left shoulder in the nature of an aggravation as contemplated by s 4 (b)(ii) of the 1987 Act. He submits that the provisions of s 16 of the 1987 Act deem the injury to have been sustained on
21 January 2022 and that Linx Cargo Care is liable for the payment of weekly benefits of compensation and medical expenses, including the costs of the surgery performed by
Dr Popoff, because it is the last employer of the applicant.Mr Tanner submits that a fair reading of the report from Dr Goldberg to the applicant’s lawyers dated 23 November 2022 would indicate that Dr Goldberg simply concentrated on the incident on 21 January 2022 as constituting “the final straw” and did not provide an opinion based upon the preceding history of demanding loads upon the applicant’s shoulders. He submits that the restrictions on work activities imposed by Dr Goldberg clearly indicate that Dr Goldberg was concerned with the prospect of aggravation to the applicant’s left shoulder condition which was posed by the applicant’s duties as a stevedore.
Mr Tanner also points out that the applicant’s need for treatment in 2018 and 2020 occurred when work activities resulted in the onset of symptoms in the left shoulder.
Mr Tanner submits that the details recorded by Dr Popoff that the applicant’s “shoulder only became painful when he changed roles at work and was subjected to a prolonged period of repetitive heavy lifting in confined quarters” occurred when the applicant commenced employment with Linx Cargo Care in September 2021, and did not occur on
21 January 2022.Mr Tanner submits that the opinion of Dr Harrington that “the aggravation was only temporary” is a bald assertion which is not explained, especially when the applicant remained in pain and required surgery.
Mr Perry on behalf of all four respondents submits the evidence dictates a finding that the applicant sustained an injury on 21 January 2022 while employed with Linx Cargo Care and that this was a ‘personal injury’ arising out of or in the course of employment as provided for by s 4 (a) of the 1987 Act. He submits that this is not a nature and conditions claim or disease claim.
Mr Perry refers to the details recorded in by Dr Goldberg that the applicant “has long-standing osteoarthritis of his left shoulder, but almost certainly tore part of the rotator cuff in the accident at work early this year” to submit that the applicant sustained a frank injury on 21 January 2022 and that the disease provisions of s 4 have no application in this dispute.
Mr Perry relies upon Rail Servicesv Dimovski and Anor [2004] NSWCA 267; 1 DDCR 648 (Dimovski) wherein Hodgson J at [64] preferred the majority decision (Sheller and Powell JA) in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606; 17 NSWCCR 309 (Mecha) that:
“…the words “injury consists in the aggravation…of a disease” in s 16 (1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation.”
His Honour then said at [68]:
“…Section 16 applies only if the injury “consists in” the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury “consists in” the aggravation of a disease.”
Mr Perry submits that based upon what is set out in the reports of Dr Goldberg, and in accordance with Mecha, the injury sustained by the applicant on 21 January 2022 is an injurious event which is an injury independent of its aggravating effects upon a previously existing disease.
Mr Perry submits that the applicant has the onus of establishing that, contrary to the opinion provided by Dr Harrington, the cause of the applicant’s incapacity and the need for surgery on the left shoulder is a work-related injury rather than a condition which predates that work injury.
Mr Tanner in reply submits that the medical evidence establishes that the heavy manual activities performed by the applicant over many years contributed to the gradual development of his left shoulder pathology and that the respondent’s argument that such pathology is attributable to a single incident (which was typical of work performed for years by the applicant) is plainly untenable.
Determination
Section 4 of the 1987 Act provides as follows:
“In this Act:
Injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment is the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
Mr Perry relies upon there being an injurious event on 21 January 2022 which satisfies the definition of ‘personal injury’ in s 4 (a) of the 1987 Act, and that the injury which was sustained by the applicant on that day does not consist in the aggravation of a disease which would allow for a finding that the applicant sustained a disease injury pursuant to s 4 (b)(ii).
However, the evidence made available in this dispute does not necessarily support a finding that whatever did occur to the applicant’s left shoulder on 21 January 2022 was an incident that was independent of the aggravating effects of the heavy work which the applicant had been doing for many years as a stevedore.
There is no challenge to the applicant’s evidence that the work that he performed for all four respondents over many years was heavy and strenuous. The applicant states that he noticed a sharp pain in his left shoulder when he had to flick two heavy chains vigorously with both hands to loop them around the sides of a billet on 21 January 2022. However, the applicant also states that he had pain and discomfort in his left shoulder from 2018 onwards. That evidence is corroborated by his need to attend upon Dr Kemp in late 2018 and early 2019 and upon Dr Goldberg in late 2020. The applicant states that that he continued to see his general practitioner during 2021 for his shoulder symptoms and was prescribed Mobic.
Dr Popoff records that the applicant’s left shoulder became painful “doing a prolonged period of heavy lifting in the bottom of the ship”. Dr Popoff does not identify the duration of that “prolonged period”, but he does record that the onset of pain occurred when he changed roles at work.
Dr Isaacs records that the applicant noticed the onset of increasing pain in both shoulders (with the left being worse than the right) on 21 January 2022 while lifting and holding in place heavy metal chains and wires for a protracted period of time. Dr Isaacs also records that the applicant’s left shoulder remained symptomatic after he attended Dr Goldberg in late 2020 and that he attended his general practitioner for anti-inflammatory medication during 2021.
Dr Harrington does not record a specific incident on 21 January 2022, but instead that there had been a gradual development of left shoulder pain and that this pain became even worse after “being down a hole for 12 hours” on 21 January 2022.
Dr Goldberg does record in his report dated 1 March 2022 a specific incident with the development of quite significant bilateral shoulder pain in late January 2022 when the applicant was holding a large chain and abducted his arms.
It is this history recorded by Dr Goldberg and his reference to “the work related accident in 2022” in his subsequent report dated 23 November 2022 which leads Mr Perry to submit that: “the injury sustained by the applicant on 21 January 2022, if Dr Goldberg is correct, is an injurious event which is an injury independently of its aggravating effects on a previously pre-existing disease.”
I accept that considerable weight should be given to the evidence of a treating specialist, especially a specialist who has treated a patient over a lengthy period of time. I acknowledge the submission made by Mr Perry that it is the account recorded by Dr Goldberg that accords with the evidence provided by the applicant.
However, I agree with the submission made by Mr Tanner that the details recorded by
Dr Goldberg when the applicant returns to see him in March 2022 cannot be read in isolation of Dr Goldberg’s own knowledge that the applicant had been having problems with his left shoulder for a few years before the work which the applicant undertook on 21 January 2022. Dr Goldberg does not provide any opinion on the cause or causes of the applicant’s left shoulder symptoms in his report to the general practitioner on 7 September 2020, but he does record that the applicant relates his symptoms to his work practices, in particular “lashing” work.The applicant’s description of the development of left shoulder pain while undertaking heavy manual work, the need for medical treatment for the left shoulder from 2018 onwards while doing that work, and the details recorded and opinions provided by Dr Popoff and Dr Isaacs, provide in my view compelling evidence that the applicant sustained an injury to his left shoulder due to the work he performed for many years as a stevedore and that the increase of pain experienced by the applicant on 21 January 2022 was not an incident or event which was independent of the aggravating effects of that heavy work.
Mr Perry relies upon the decision of Temple v Woolworths Group Ltd [2022] NSWPICPD 16 (Temple), wherein he submits that the worker suffered from a pre-existing condition prior to an incident at work. That incident at work was found at first instance to be an injury pursuant to s 4 (b)(ii), but this finding was then overturned by DP Wood. Deputy President Wood said at [127]:
“….the Member proceeded on the basis that s 16 of the 1987 Act applied to both the injury deemed to have occurred on 21 July 2020 and the frank injury that occurred on 9 November 2017. In accordance with Mecha and Dimovski, s 16 did not apply to the injury on 9 November 2017, and thus the Member erred in failing to deal with the appellant’s submission that she suffered two injuries which both materially contributed to her incapacity.”
The facts in this dispute are different to the facts in Temple. The worker in Temple sustained a frank injury in November 2017 and then sustained an injury due to picking and packing duties over the course of about 12 months with a different employer. It was ultimately determined that the injury in November 2017 met the requirements of s 4 (a) and not (b)(ii).
The reverse scenario to Temple occurs in this dispute. In this dispute the applicant developed left shoulder pain from 2018 onwards which coincided with heavy manual work. Both Dr Kemp in 2018 and Dr Goldberg in 2020 record that the applicant experienced symptoms in the left shoulder when he was doing lashing work. Then on 21 January 2022 he experienced an increase of pain in the left shoulder while doing similar heavy work to what he done for some years.
That chronology of events reinforces my conclusion that the increase of pain experienced by the applicant on 21 January 2022 was not an incident or event which was independent of the aggravating effects of that heavy work undertaken by the applicant whereby the principle in Dimovski is to be applied.
The applicant nonetheless still has to meet the requirement of s 4 (b)(ii) of the 1987 Act that the applicant’s employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease affecting the left shoulder.
The application of s 4 (b)(ii) has been well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
·(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
·(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
·(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
I prefer the opinions of Dr Popoff and Dr Isaacs because those doctors engage in an “evaluative process” of considering the applicant’s pre-existing arthritis, informing themselves of the type of work that the applicant has undertaken for many years, and then determining the effect that the applicant’s work upon the degenerative condition of his left shoulder. In my view, both experts have provided a proper explanation as to why the applicant’s employment is the main contributing factor to the aggravation of the disease affecting his left shoulder.
Dr Popoff’s opinion does proceed on an assumption that the left shoulder condition became pain free after the applicant had treatment from Dr Goldberg in 2020, which is contrary to the applicant’s evidence that he had pain and discomfort in the left shoulder from 2018 onwards and that he was prescribed Mobic during 2021. However, in my view that does not alter the conclusion reached by Dr Popoff that the applicant’s work was “a major aggravating factor” in the condition of the applicant’s left shoulder because he understands that the applicant’s left shoulder became painful from being “subjected to a prolonged period of repetitive heavy lifting in confined quarters”. This accords with the applicant’s description of his work duties and which is evidence which has not been challenged by Linx Cargo Care.
I prefer the opinions of Dr Popoff and Dr Isaacs over the opinion provided by Dr Harrington. Dr Harrington does not explain why “the aggravation was only temporary” when the applicant continued to experience symptoms after he was placed on restricted duties and then had his employment terminated by Linx Cargo Care. Dr Harrington does not engage in an evaluative process which considers both work and non-work related factors to opine as to whether the applicant’s employment is the main contributing factor to the aggravation of the disease affecting the left shoulder.
I also accept from my preference for the opinions of Dr Popoff and Dr Isaacs that the applicant continued to suffer the effects of the disease injury to his left shoulder after he ceased work for Linx Cargo Care. The ongoing pain experienced by the applicant and the need for surgery is consistent with the opinion from Dr Popoff that the “aggravation has continued and is likely to continue” and from Dr Isaacs who considered that the applicant had a “current disability” which required surgery.
I therefore find that the applicant sustained an injury to his left shoulder in the course of his employment by way of a disease injury pursuant to s 4 (b)(ii) of the 1987 Act, with a deemed date of injury of 21 January 2022.
Linx Cargo Care was the last employer who employed the applicant at the time of his incapacity and will be liable to pay compensation benefits pursuant to s 16 (1) of the 1987 Act. Mr Perry has advised that no order is sought for contribution pursuant to s 16 (2) as there is an agreement between Linx Cargo Care and Sydney International Container Terminals Pty Ltd in regard to this.
The claim for weekly payments of compensation
The applicant’s evidence
The applicant’s past employment has mostly been as a stevedore, although he has also worked as a barman and bar manager.
The applicant does not provide any details in his statements of the “clerical duties” or “selected duties” which he performed while employed with Linx Cargo Care after
21 January 2022 and up until 21 November 2022.
The applicant has also not provided his own evidence of the condition of his left shoulder since he underwent surgery in February 2023.
The medical evidence
Dr Vo issued a Certificate of Capacity dated 8 November 2022 wherein the applicant was certified as having capacity to work eight hours per day for five days per week with a lifting and carrying capacity of 4kg and not above shoulder height, with normal sitting, standing and driving tolerance, and being able to do office based duties only.
There are Certificates of Capacity issued by Dr Vo following the surgery which the applicant underwent which are dated 1 June 2023 and 9 November 2023 which certifies that the applicant has no current work capacity.
Dr Goldberg opines in his report to the applicant’s lawyers dated 23 November 2022 that the applicant would be able to return to his pre-injury duties within three to six months of the pyrocarbon hemiarthroplasty, and he would be able to resume full and unrestricted activities including surfing.
Dr Harper opines in December 2022 that the applicant could return to work as a stevedore if he achieved a significant reduction in pain and improvement in movement following the recommended pyrocarbon hemiarthroplasty.
Dr Popoff opines in his report to the applicant’s lawyers dated 1 February 2023 that the proposed left shoulder surgery “should improve the applicant’s pain and function, hopefully to the stage that he will be able to return to normal activities at work, and return to his normal recreational activities”.
Dr Isaacs examines the applicant just eight days before the applicant undergoes the left shoulder surgery. The opinion from Dr Isaacs on the applicant’s capacity for work is limited to: “Mr Gorlicki will not be able to engage in full duties of a stevedore”.
Dr Harrington also examines the applicant prior to his left shoulder surgery and opines that the applicant would not be fit for pre-injury duties including climbing down holes, slinging loads, moving steel, and driving cranes, although Dr Goldberg considers these are related to the applicant’s pre-injury pathology rather than any specific injury at work in January 2022.
A summary of the submissions made by the parties to the dispute
Mr Tanner submits that the applicant has had no current work capacity since
21 November 2021. He submits that the restricted duties provided by Linx Cargo Care to the applicant were made pursuant to their injury management obligations and the applicant’s termination of employment confirms that the work given to him was not a real job of commercial value.Mr Tanner submits that there is no evidence provided by the respondent as to a “real job” which the applicant could reasonably be able to secure and retain given his age, training, work experience and physical limitations.
Mr Tanner submits that the applicant should be awarded weekly payments of compensation at the maximum statutory rate because 80% of his pre-injury average weekly earnings (PIAWE) exceeds the maximum statutory rate.
Mr Perry did not make any submissions which were directed to the application of “current work capacity” and “no current work capacity” as those terms appear in cl 9 of Schedule 3 of the 1987 Act.
Mr Perry relied upon the opinion of Dr Harrington that the applicant’s present incapacity should be seen as due to the long-standing condition affecting the applicant’s left shoulder.
Determination
“Current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”
Section 32A of the 1987 Act includes a definition of “suitable employment” as:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
I have already made findings that the applicant sustained an injury to his left shoulder in the course of his employment with Linx Cargo Care by way of a disease injury pursuant to s 4 (b)(ii) of the 1987 Act and that the applicant continues to suffer the effects of the injury.
The limited evidence from the applicant that he undertook “clerical duties” and “selected duties” after he sustained injury to his left shoulder in January 2022, and the Certificate of Capacity issued by Dr Vo on 8 November 2022 wherein the applicant was certified as having capacity to work eight hours per day for five days per week in office based duties, allows for a finding to be made that the applicant was able to return to suitable employment, such as undertaking basic office work, at least until he underwent surgery to his left shoulder on
21 February 2023.However, there are Presidential decisions which have expressed the need for caution when considering whether “a made up job” can constitute ‘suitable employment’ (Popal v Myer Holdings Pty Ltd [2020] NSWWCCPD 32 (Popal) at [53]). Deputy President Snell said in Popal at [51]:
“The reference to ‘real jobs’ in the above passage needs to be read in light of the issues being argued in Dewar. The employer had supplied light work to the worker that consisted of a job that was made up for the purpose of supplying suitable duties. The employer argued this demonstrated an ability to perform ‘suitable employment’ for the purposes of s 32A, regardless of whether an employer exists who would provide that work. The Deputy President rejected the employer’s argument on this point; work that was ‘not real employment or work that was potentially available in the labour market at large’ was not ‘suitable employment’.”
Deputy President Snell also referred with approval to what was said by DP Wood in Westpac Banking Corporation v Mani [2019] NSWWCCPD 41 (Mani) at [177]:
“The Commission has identified in a number of cases that for the purposes of s 32A of the 1987 Act, ‘suitable employment’ encompasses the identification of an actual position that the injured worker could do, rather than a ‘light duty’ job that the employer created that is not a real job.”
I have already observed that the applicant does not provide any details of the “clerical duties” or “selected duties” which he performed while employed with Linx Cargo Care after
21 January 2022 and up until 21 November 2022. However, there is also no evidence from Linx Cargo Care as to what those duties involved and whether those duties were essential or critical to the needs of their business.I therefore consider that a reasonable inference can be made, and a conclusion can be reached, that the “clerical duties” or “selected duties” which the applicant did after his injury were made up jobs. This conclusion is reinforced by the decision by Linx Cargo Care to no longer provide suitable duties to the applicant within a few weeks of workers compensation liability being denied by its insurer.
The applicant had otherwise been engaged for most of his working life in manual jobs, which placed significant limits upon his ability to obtain suitable employment after he was stood down and then had his employment terminated by Linx Cargo Care and then waited for surgery on his left shoulder.
I therefore find the applicant had no current work capacity from 21 November 2022 until he underwent surgery to his left shoulder on 21 February 2023.
I also accept that the applicant had no current work capacity from the time he underwent surgery to his left shoulder because that surgery was reasonably necessary as a result of his work injury. I will set out the reasons for this in that part of the decision which relates to the claim for medical expenses.
It is now almost 12 months since the applicant underwent the surgery to his left shoulder.
Dr Goldberg, Dr Harper and Dr Popoff were all optimistic about the applicant having a good result from the surgery, with Dr Goldberg and Dr Popoff being of the belief that the applicant could return to normal duties.It may be that by now the applicant does have some ability to engage in suitable employment. However, the only medical evidence which post-dates the surgery are Certificates of Capacity from Dr Vo which certify that the applicant as having no current work capacity. In the absence of any other medical evidence, I find that the applicant has continued to have no current work capacity since the surgery he underwent on
21 February 2023.Mr Perry did not make any submissions as to what PIAWE should be. The Reply filed on behalf of Linx Cargo Care stated PIAWE to be the maximum statutory rate from
21 November 2022 onwards. The award for weekly benefits of compensation to be paid by Linx Care Cargo will therefore be as follows:(a) $2,341.80 per week from 21 November 2022 to 31 March 2023 pursuant to s 37 (1) of the 1987 Act;
(b) $2,395.30 per week from 1 April 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act, and
(c) $2,423.60 per week from 1 October 2023 to date and continuing pursuant to s 37 (1) of the 1987 Act.
The claim for medical expenses
The medical evidence
Dr Goldberg does not specifically address the issue of whether the surgery to the left shoulder is reasonably necessary as a result of the work injury, although he does state in his report dated 23 November 2022 that “the need for the ongoing management does relate to the arthritic change in his shoulder joint.”
Dr Popoff opines in his report dated 7 December 2022 that:
“It is likely that he would require joint replacement at some stage, however the work related aggravations led to this becoming necessary at a point in time much earlier that would otherwise have been expected.”
Dr Isaacs in his report dated 14 February 2023 identifies a clear link between the aggravation of the left shoulder due to the type of work that the applicant was doing and the need for surgery.
Dr Harrington does not specifically address the issue of whether the surgery to the left shoulder is reasonably necessary as a result of the work injury. However, I have provided my reasons as to why I do not accept his opinion that the applicant’s symptoms are only related to his glenohumeral arthritis and not the aggravating effects of the heavy work which the applicant performed as a stevedore.
Determination
The opinions from Dr Popoff and Dr Isaacs on the reasonable necessity for surgery of the work injury are consistent with the findings which I have already made that the applicant’s employment is the main contributing factor to the aggravation of arthritis in the left shoulder.
Even the opinion of Dr Goldberg that “the need for the ongoing management does relate to the arthritic change in his shoulder joint” comes within the parameters of what was stated by DP Roche in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy) that is only necessary “that the injury materially contributed to the need for surgery” [at 58].
I consider that the medical evidence which I have preferred supports a finding that the need for surgery was due to the aggravation of the arthritic condition of the left shoulder caused by the heavy work undertaken by the applicant.
There will therefore be a finding made that the hemi-arthroplasty surgery which the applicant underwent to his left shoulder on 21 February 2023 was reasonably necessary as a result of the injury sustained by the applicant in the course of his employment with Linx Cargo Care.
There will be an order made that Linx Cargo Care is to pay the costs of the applicant’s reasonably necessary medical expenses for treatment for the injury to the left shoulder, including the costs of the hemi-arthroplasty surgery which the applicant underwent on
21 February 2023.
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